DPP v McPherson [2026] VCC 208

1. The offences occurred on 4 July 2024 when you were 26 years old and while you were in custody serving a total effective sentence of 8 years and 7 months with a non-parole period of 5 years and 7 months. A period of 597 days pre-sentence detention was declared as having been served. The offending for which you were sentenced at that time included charges of aggravated carjacking, intentionally cause injury, intentionally cause serious injury arson, and other driving charges, committed on 5 October 2020.
2. The circumstances of your current offending are set out in the agreed Summary of Prosecution Opening and I sentence you on the basis of the facts set out in that document. Put briefly, prison officers were called to your cell after you appeared unwell and were being held up by fellow prisoners. You were under the influence of home brew, methadone and had abused buprenorphine. When prison officers sought to observe you, you rose from your bed and, as prison officer Mr Thomas Smith backed away, you pursued him and struck him in the face. Mr Smith continued to back away you continued to pursue him and then punched and kneed him to the head several times. This conduct is the subject of charge 1.
3. The second prison officer, Mr George Amosa, dragged you off Mr Smith. You punched Mr Amosa a number of times in the stomach before he took you to the ground and lay on top of you. You spat on Mr Amosa before being restrained by Tactical Operations Group members. This incident is the subject of the related summary charge.
4. The entire incident took less than a minute and was captured on CCTV.[1] I have viewed it.
5. After the incident, on 7 August 2024 you were transferred to the management unit of the prison where you remained until 18 March 2025, in solitary, 23-hour lockdown. You were then moved to a management unit at Barwon prison. You are currently in mainstream at Western Plains Prison.
6. You have no pending matters. I note there is a subsequent matter, for a charge of causing injury intentionally for which you were sentenced to 1 month's imprisonment,[2] to be served cumulatively upon your existing sentence.[3]

1. I have considered the material filed by the parties.[4]

1. At the plea hearing, counsel for the prosecution read out the Victim Impact Statement of Mr Smith at his request.[5]
2. In that statement, Mr Smith details the physical injuries that he suffered and the pain and suffering caused by the fractures to his left eye socket and the plastic surgery he underwent. He withdrew socially and was unable to undertake any recreational or exercise activities. He was urged by his then treating psychologist to return to work as soon as possible, which he did on modified duties and hours, but the psychological impact of the incident resulted in a severe deterioration in his psychological state. He suffered debilitating symptoms of PTSD, anxiety, depression, sleep disturbance and intrusive nightmares which resulted in a total incapacity for work since April 2025. As a result of his psychological symptoms of depression and PTSD, he has remained socially withdrawn and continues to be. All the plans he had at the time of the incident, which included marrying his fiancé, maintaining stable employment, buying a property and starting a family, have been replaced by a sense of disconnection and uncertainty. He and his partner have separated due to the strains on the relationship caused by the psychological, social and physical impact of your offending. His anxiety and depression have been severely exacerbated by the prospect of having to give evidence at trial, and he has wanted to see this matter resolved so that he did not have to relive the events which have so seriously impacted his life.
3. Mr Amosa did not suffer any physical injuries and did not provide a Victim Impact Statement.

1. You were born in Sunshine, and you have three older siblings. You witnessed and experienced severe family violence between your parents during your childhood. On one occasion your father broke your mother's eye socket and was sent to jail.
2. Your mother ultimately separated from your father and re-partnered. However, you and your siblings were removed from your mother's care by the Department of Health and Human Services. You went to live with your sister when you were 15 years old. You began using and abusing multiple drugs, including methamphetamine, GHB, marijuana and alcohol.
3. You attended school until year 9, when you were expelled for poor behaviour. You have poor literacy. You have no real employment history, only having ever obtained some intermittent and casual work. Your life since your mid-teens has been one of drug addiction, homelessness and incarceration.
4. Associate Professor Rajan Darjee noted that you have a complex psychological profile.[6] He diagnosed you with a number of conditions: borderline intellectual functioning; ADHD; severe personality disorder; substance abuse disorder; and psychotic symptoms associated with substance abuse. He assessed you as being at high risk of future violent offending. He noted that when assessed you seemed primarily concerned about the impact of your behaviour on your prospects of release. However, you showed some insight into the areas that may reduce further offending.[7]
5. Whilst it was conceded that you do not have a mental health condition that would deteriorate in prison, your psychological profile makes you a more vulnerable prisoner and more likely to experience behavioural and interpersonal difficulties.[8]

1. The prosecution relied on written submissions filed on 25 February 2026 which were in similar terms to those filed at the sentence indication hearing.
2. The prosecution submitted that self-induced intoxication on the home brew was the prime cause of your offending, as your drug addictions were being managed in prison with appropriate medication. This was an aggravating feature of your offending.
3. The prosecution noted your lengthy criminal history of relevant offending, both as a minor, and as an adult.
4. The prosecution submitted that your offending is serious and warrants a term of imprisonment of not less than 6 months with a new global non-parole period to be set.
5. Your counsel relied on the unusual circumstances of the offending, given that you had been described as a generally compliant prisoner, and submitted that the intoxication was the proximate cause of your offending, which was spontaneous, committed alone, and did not involve the use of weapons. It was submitted that although yours is not an early plea, it is of particular utilitarian value given the complainant's psychological frailty, fear of having to be re-traumatised at trial by reliving the incident, and his desire for the matter to be resolved.
6. Your counsel also relied on your significantly deprived background, personality issues, limited intellect, drug dependence and long periods of incarceration including a number of months in solitary confinement as a result of your offending, and submitted that any sentence imposed ought not to crush your expectation of release in the foreseeable future.

1. In this case, the mandatory minimum sentence of not less than 6 months' imprisonment required on charge 1 indicates the importance of general deterrence and denunciation in sentencing for offences of this kind. In your case, notwithstanding that you were regarded as a compliant prisoner prior to this offending, your long criminal history of violence along with the high risk that you will commit further violent offences makes specific deterrence and community safety also very important considerations. I also note the very serious and long-term negative impact of your offending on Mr Smith.
2. I accept the matters relied upon in mitigation by your counsel. In accordance with my sentence indication, I consider that the only appropriate disposition is one of the imposition of an aggregate sentence of imprisonment of more than 6 months, with a non-parole period.

1. Would you please stand.
2. On charge 1, causing injury intentionally, you are sentenced to 6 months' imprisonment. I indicate that 3 months of this sentence is to be served cumulatively upon the sentence already being served by you.
3. On summary charge 4, you are sentenced to 1 months' imprisonment, to be served concurrently.
4. You have been awarded 85 emergency management days, which must be deducted from the current total effective sentence of 8 years and 8 months' imprisonment with a non-parole period of 5 years and 8 months. I understand from the parties that you will be eligible for parole on 4 April 2026. If you serve your full sentence, you will be released on 4 April 2029.
5. I must impose a new global non-parole period. I indicate that this period is one which would make you eligible for parole 3 months after 4 April 2026, that is, on 4 July 2026. Your new non-parole period is therefore one of 5 years and 11 months' imprisonment.
6. I indicate under section 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have imposed a total effective sentence of 9 months' imprisonment with a non-parole period of 6 months' imprisonment.

[1] Exhibit 1 - CCTV footage of incident.

[2] On 2 December 2024 at Werribee Magistrates' Court.

[3] You were sentenced by her Honour Judge Hassan on 17 June 2022 to a total effective sentence of 8 years and 7 months' imprisonment with a non-parole period of 5 years and 7 months. 597 days of PSD was declared as having been served. You were sentenced by Werribee Magistrates' Court on 2 December 2024 to 1 month imprisonment, to be served cumulatively on the head sentence. By operation of law, the current head sentence is one of 8 years and 8 months' imprisonment with a non-parole period of 5 years and 8 months.

[4] The prosecution filed the plea indictment; Notice of related summary offences; your criminal history; the Victim Impact statement from Thomas Smith dated 2 March 2026; an outline of submissions; photographs of Mr Smith's injuries; 3 certificates of incapacity in relation to Mr Smith; the sentencing remarks of Judge Hassan on 17 June 2022 and those of Judge Meredith on 22 February 2018. Defence counsel filed an outline of submissions; a psychiatric report of Associate Professor Rajan Darjee; a sentence/remand report; and referred me to the case of Dung Yat v The King [2024] VSCA 93.

[5] Exhibit 2 - Victim Impact Statement of Thomas Smith dated 2 March 2026.

[6] Exhibit B - Report of Associate Professor Rajan Darjee dated 25 September 2025.